Commentary

This change will need to be tested in the courts and tribunals to work out its full implications. However, its immediate effect, both practical and symbolic, is obvious. It is a direct attack on collective bargaining and on the terms and conditions of trade union members. It is also likely to amount to a breach of international laws and conventions ratified by the United Kingdom, including:

• Article 11 of the European Convention on Human Rights — the right to freedom of association and to bargain collectively (Demir and Baykara v Turkey Case No 34503/97); and

• Article 4 of International Labour Organisation Convention 98 — the UK government’s duty to encourage and promote collective bargaining of contract terms and conditions.

Other points to note are as follows:

• Potential breaches of section 145B of TULRCA: This section says that a member of a trade union that is recognised or seeking recognition has the right not to be made an offer that is intended to result in some or all of the employee’s terms no longer being collectively bargained by a trade union. An employer who tries to negotiate directly with employees to encourage them to abandon their collectively agreed terms (as opposed to using collective bargaining to negotiate change) is likely to infringe this section.

• Any change must be achieved through collective bargaining: The Acquired Rights Directive does not allow individuals to negotiate changes to their contract terms, so any re-negotiation of collective terms should be through collective bargaining.

• Contract terms based on custom and practice: Any contract term that is implied based on custom and practice will transfer under TUPE and will be unaffected by this change.

• Terms written into the employment contract: Only terms “incorporated from a collective agreement” are covered by this Regulation. Terms that have been written into the body of the employment contract should be unaffected, even if those terms originally derive from a collective agreement.

• Contract terms incorporated from any other source than a collective agreement: “Collective agreement” has a precise definition under section 178 TULRCA. There are many sources of incorporated contract terms, such as awards by external pay review bodies, staff handbooks and employer policies, even if influenced by the union through consultation. These will not be affected by the change to the law.

• What does “no less favourable overall” mean? And who decides whether a new term is no less favourable overall? Is it each individual employee, or an objective standard based on reasonableness? Employees are likely to place different values on contractual benefits, depending on their individual situations. For example, a young worker with no dependants might willingly accept a cash sum in return for giving up death-in-service or redundancy benefits, whereas an older employee with dependants might value these benefits highly and wish to retain them. These will all be issues for a tribunal to determine.

• A term that is “less favourable overall” will be void. Any dismissal for refusing to agree to such a term will be automatically unfair.